What Selfless Judges can do in Africa: The Kenyan Model—Bernard Asubonteng

The judicial ruling handed by the selfless Kenya’ s highest appellate court took political observers—indeed, everyone around the world—off guard. The political world including the Kenyan people were taken aback not primarily because they didn’t know there was contentious electoral imbroglio waiting impatiently before the Kenya’s Supreme Court for fair verdict. Clearly, the shocker stemmed from the seemingly calmed manner within which four out of six typical African judges, who normally lacked well-secured protection, displayed inimitable fearlessness in adjudicating hot-buttoned presidential election issue in favor of the opposition.

The context of the whole story was that the people of Kenya went to the polls on August 8, 2017; and, as the world knows by now, the incumbent President Uhuru Kenyatta was declared or said to have won reelection over his closest challenger Mr. Raila Odinga. The opposition spearheaded by Mr. Odinga quickly challenged the results in law court, citing widespread electoral irregularities/riggings that possibly enabled Mr. Kenyatta to win.

Under normal circumstances, in this continent called Africa, a case of this magnitude usually has one predictable outcome: The spineless courts rule in favor of the government of the day regardless of the preponderance of relevant evidence strongly pointing to the opposite direction. In all instances, the predominant reason(s) for this unfortunately pervasive phenomenon is that most of our judges in Africa do not understand and appreciate the sacredness of the concept of judicial independence. For most of these judges, the judiciary arm is nearly, if not, subservient to the executive branch.

This means even where judges do show some vestiges of quasi-judicial autonomy, the intimidating behaviors of the ruling governments, coupled with institutionalized bribery within the judiciary, make a sizable bunch of Africa judges a joke vis-à-vis their approach to fair jurisprudence. Simply put, African judges are relatively easy to manipulate and control by their respective governments to the extent that they become too scared of their own shadows to think about judicial integrity, human morality, honor, altruism, duty, nationalism, and self-confidence. Too often judges in Africa have long become exact copies of rubber-stamps serving at the pleasures of the executive arm of the government.

On Friday September 1, 2017, however, there was an unprecedented, seismic, constitutional event; a landmark political paradigm shift unfolded in Kenya in the annals of the continent’s body politic. It was unique occurrence that would probably be best described in the social science discipline as the “Kenyan Judicial Model.” Africa and the world at large witnessed some brave and selfless Kenyan Supreme Court judges delivered one of the most consequential constitutional decisions whose geopolitical ramifications would undoubtedly reverberate across generations yet to come.

The four Kenyan Supreme Court justices, who cast the self-denying votes to annul the reelection victory of the current Kenyan President Mr. Kenyatta, were not only living up to their “sacred” constitutional obligations to the people of Kenya. But also it was a clear signal to the contemporary world that a useful teachable lesson on genuine democracy can come from Africa, too.

As many of us know, the other side of the world had dismissed Africa as a troubled-child; always complaining, shifting blame, unwilling to take responsibility, and not doing many things right for its exploding population. Nevertheless, those Supreme Court judges in Kenya demonstrated an unparalleled act of altruistic interpretation of the country’s constitution. Their action was also an affirmation that the continent can do something extraordinary for its teeming population.

As usual, there are some vociferous voices out there, including the so-called international election observers, claiming that the Kenyan Supreme Court judges had conducted judicial activism with regard to its ruling against the Kenya’s Independent Elections and Boundaries Commission’s declarations. For this present writer, the simple question is: What actually happened, or who orchestrated the murder of the country’s Electoral Commission’s Information and Communications Technology (IT) head Mr. Chris Msando in the days leading to the presidential elections?

Could it be that his strong sense of independence and vast technical know-how of the election results transmissions made him a target for murder to pave the way for one of the political parties to gain an unfair advantage? Perhaps none of us may ever know the motive of this tragic death. However, one pattern of behavior is typical of almost all African ruling governments who do not want to relinquish power easily: They usually ensure that any stumbling block real or perceived is eliminated “by any means necessary” before or during the elections. The late Mr. Msando’s death could not have been a random act or a mere accident.

At any rate, whatever African “strongmanship” demeanor or political testosterone President Uhuru Kenyatta is trying to show off now, having initially said he would accept the court’s ruling, would amount to nothing of substance in that the judges backed by millions of Kenyans are determined and unfazed. In fact, this is what selfless and bold judges can do for the marginalized people of Africa: That at some point, human life ceases to be about our personal egos, self-serving, material acquisition, winning at all cost as opposed to one’s integrity and honor. After all, the sages say: “Good name is far better than riches.” Will other African judges and some leaders alike learn from these gallant Kenyan justices of the Supreme Court?